Today, January 28, 2015, the National Transformation Council (NTC) is declaring a nationwide day of mourning and prayers for our fallen Philippine National Police Special Action Force (PNP-SAF) personnel. The death of our compatriots is indeed a national tragedy and we enjoin all Filipinos to honor them in solemn and deep prayers and commiseration to the loved ones they leave behind. May God take them in His bosom in mercy and love.
Wednesday, January 28, 2015
Friday, January 23, 2015
Do's and Don'ts of “System Change”
“System
Change” is the transformation of the fundamental structure of the
state, that is usually linked to politics and the economy.i
It involves revolutionary changes in the structure of government and
the key economic policies. It usually includes major revisions of the
constitution and the laws.
“System
Change” becomes imperative when the existing system fails to
generate jobs for the poor, protects the monopolies of the rich,
enables family dynasties to rule, manufactures election results,
institutionalizes graft and corruption, perpetrates selective
justice, rewards criminality, distorts history to hide the ugly
truth, and closes avenues for genuine reform.
To
ensure that “System Change” leads to meaningful social
transformation, these guidelines are suggested to assist the people
and their delegates in reaching a general agreement, on which
structures and policies to change in order to promote the general
welfare and ultimately the common good.
The
suggested Do's and Don'ts are as follows:
- DO discuss proposed changes in orderly manner,
- DO focus discussions on structural and policy issues that matter,
- DON'T divert discussions to peripheral issues that don't matter,
- DO use available language when general agreement is reached,
- DON'T use new language unless necessary,
- DO consult lawyers and English scholars to review language,
- DO record discussions for future reference.
While
the subject of “System Change” includes both the constitution and
the major statutory laws (such as the Local Government Code and the
Organic Act for the Autonomous Region in Muslim Mindanao), these
guidelines discuss only the constitution for brevity.
- DO discuss proposed changes in orderly manner.
Meetings
of importance always have an agenda. Otherwise, everyone will rise to
take the floor and talk about his or her own favorite topic. When the
meeting adjourns, no one present will know what it was all about.
This is so regardless of whether the meeting is physical in a town
hall or board room, or virtual in cyberspace.
Accordingly,
it is elementary that serious discussions about “System Change”
must begin with an agenda. Anyway, if the majority of the
participants do not like the agenda presented, they are free to
change it.
My
personal preference is to adopt the content outline of the 1973
Constitution as the agenda items for any serious forum on “System
Change”. Why? It is because the 1973 Constitution covers the basics
with short and simple statements. Moreover, it is the ONLY Philippine
Constitution drafted by ELECTED delegates INDEPENDENT of the
authority of a foreign power.
The
1973 Constitution consists of a Preamble and 17 Articles, i.e.
National Territory, Declaration of Principles and State Policies,
Citizenship, Bill of Rights, Duties and Obligations of Citizens,
Suffrage, President and Vice-President, National Assembly, Prime
Minister and Cabinet, Judiciary, Local Government, Constitutional
Commissions, Accountability of Public Officers, National Economy and
the Patrimony of the Nation, General Provisions, Amendments,
Transitory Provisions.
The
Preamble and 17 Articles make a total of 18 subjects outlined for
discussion.
If
participants want to omit certain subjects from the outline, let them
explain.
If
participants want to add new subjects to the outline, let them
explain.
If
participants want a totally different outline with nothing in common
with the 18 subjects for discussion, let them explain.
If
participants want an “uncodified” or “unwritten”
constitution, just like in the United Kingdom, let them explain.
- DO focus discussions on structural and policy issues that matter.
The
ultimate purpose of “System Change” is to improve our lives and
change the economy and politics for the better. Accordingly, we
should focus our energies on issues that matter. These are the
changes that promise to make tectonic shifts in society.
My
personal view of the structural and policy issues that matter include
the following:
1.
Proposed liberalization of restrictions on foreign investments; the
proposition seeks to generate jobs for the poor through massive
capital infusion; it also seeks to dismantle the monopolies of the
rich through open competition; finally, it seeks to dismantle the
cartels of government suppliers and contractors through the entry of
new independent players;
2.
Proposed shift from the “presidential form” of government to a
“parliamentary form”; in other words, the shift from individual
rule to collective rule; the proposition seeks to loosen the grip of
oligarchs over the national government; it also seeks to establish a
lean but strong national government;
3.
Proposed shift from the “mayor type” of local government to a
“council type”; in other words, the shift from individual rule to
collective rule; the proposition seeks to loosen the grip of family
dynasties over local governments in the provinces, cities and
municipalities; it also seeks to establish lean but strong local
government units;
4.
Proposed shift from a “unitary state” to a “semi-federal” or
“federal state”; in other words, regional decentralization
through regional authorities, autonomous regions or sub-states;
should regional decentralization be applied to all regions or only to
certain regions such as the Muslim dominated areas in Mindanao and
the Cordilleras? if applied to all regions, should a uniform
structure be adopted, or should we allow different structures to be
adopted in different regions; the proposition seeks to empower the
regions to develop their respective economic strengths;
5.
Proposed legal recognition of the Southern Sultanates, without
vesting them with government powers, just like in the United Kingdom
and Japan; the proposition seeks to reverse the suppression of a
cultural heritage and legitimate social institution; it also seeks to
strengthen the legal standing of the Sultanate of Sulu to negotiate
improved proprietary compensation from Malaysia for the possession of
Sabah.
Among
these issues, I believe that the proposed liberalization of
restrictions on foreign investments is the most urgent. Why? It is
because this particular proposition has direct and immediate
consequences on job generation and poverty alleviation.
Notably,
it takes about Php180,000.00 to employ one rank-and-file employee for
one full year in Makati City. This estimate includes the applicable
daily minimum wage and the proportionate cost of modest office space
and utility charges used for the employee. It may take about half the
amount or Php90,000.00 to employ one employee for one full year in
Region I which has the lowest daily minimum wage rate.
Out
of our estimated population of 101,802,706 for 2015ii,
some 64,950,126 (63.8%)iii
are in the labor force. Out of the total labor force, some 4,871,259
(7.5%)iv
are unemployed while 12,665,275 (19.5%)v
are underemployed.
If
we multiply the number of workers unemployed (4,871,259) by the
lowest estimated cost of employing one worker for one year
(Php90,000.00), we have the staggering amount of
Php438,430,310,000.00 representing the total cost required to employ
all the unemployed for just one year.
Where
will we get that kind of money? From the government? The oligarchs?
The family dynasties? The communists who want government to take-over
virtually all major industries?
The
controversial restrictions on foreign investments have been in our
constitution for the past eighty (80) years since 1935. Are we
supposed to wait for another eighty (80) years to see if these
restrictions actually benefit the greater majority of our people?
We
can learn from the United States on how to deal with foreign
investors. They have an inter-agency mechanism that screens foreign
investments to protect their national securityvi.
In 2006, the Government of the United States used this screening
mechanism to block the acquisition of Sequoia Voting Systems of
California by the Venezuelan-owned Smartmatic International.vii
Here in the Philippines, the same Smartmatic International has
already taken technical control of our automated elections for the
years 2010 and 2013. Election reform advocates continue to be
helpless in holding this Venezuelan company to account for the
disablement of various system safeguards.
- DON'T divert discussions to peripheral issues that don't matter.
The
real challenge of “System Change” lies in facing head-on the
structural and policy issues that matter. Other matters short of the
major structural and policy issues are merely peripherals. They serve
no purpose except to divert or dilute the focus of the people and
their delegates.
For
example,
Article II of the 1987 Constitution already declares as state policy
the promotion of social justiceviii,
the respect for human rightsix,
the primacy of educationx,
and the protection of the familyxi.
Apparently not content with these declarations, the framers proceeded
to incorporate entirely new Articles on Social Justice and Human
Rightsxii,
Educationxiii
and Familyxiv.
Did
these new Articles add anything not covered or justified by the basic
declaration of state policy? Did these new clauses improve our lives?
The answer is obviously in the negative.
It
is bad enough that the framers
failed to address the more important structural and policy issues
that would have improved our economy and politics. It is worse that
they instead gave us an illusion of a better life, writing lengthy
but empty statements that add nothing to what we already have.
- DO use available language when general agreement is reached.
Crafting
new language, even though existing language is available, is like
re-inventing the wheel. It is a waste of time.
Moreover,
new language brings with it judicial uncertainty. While the meaning
of past and present language may have been settled by the courts
already, new language is still open to future judicial
interpretation.
Notably,
we do not exist in a vacuum. We have a wealth of organic acts, both
past and present, that may provide suitable templates for the
appropriate language. These organic acts are as follows: 1899 Malolos
Constitution (establishing a parliamentary government), Philippine
Bill of 1902 (establishing a municipal government), 1935 Constitution
(establishing a presidential government), 1943 Constitution
(establishing a semi-parliamentary government), 1973 Constitution
(establishing a parliamentary government), 1973 Constitution as
amended in 1976 (establishing a supra presidential government), 1986
Constitution (establishing a revolutionary government), and 1987
Constitution (establishing a presidential government).
For
example,
if the general agreement were to establish a presidential form of
government, we can use as template either the 1935 Constitution or
the 1987 Constitution. We can also refer to the 1787 Constitution of
the United States as additional material. If the general agreement
were to establish a parliamentary form of government, we likewise
have ready templates such as the 1899 Constitution, the 1943
Constitution and the 1973 Constitution.
- DON'T use new language unless necessary.
The
exceptions that may justify efforts at crafting of new language are
when the existing language is erroneous, vague, or of a policy that
needs to be modified or reversed, or when there is no precedent
available.
For
example,
the 1973 Constitution defined
national territory to include “other
territories belonging to the Philippines by historic or legal title”.
The definition was a deliberate modification of the old definition
under the 1935 Constitution which included only “all
territory over which the present Government of the Philippine Islands
exercises jurisdiction”.
The
apparent purpose of the modification under the 1973 Constitution was
to strengthen the sovereign claim of the Philippines to the territory
of Sabah based on historic
or legal title.
Notably,
former President Marcos laid claim to the Kalayaan Group of Islands
in the South China Sea (now West Philippine Sea) based also on
history,
among other grounds, pursuant to the modified definition of territory
under the 1973 Constitution.xv
Moving
forward to the 1987 Constitution, the framers this time reduced the
coverage and weakened the basis of the nation's territorial claim,
purportedly to improve relations with Malaysia. In return, Malaysia
was expected to take favorable action on the proprietary claim of the
Sulu Sultanate for adjustment of the yearly compensation due from the
former's possession of Sabah.
Twenty-eight
(28) years later today, the Sulu Sultanate continues to complain that
Malaysia has ignored their proprietary claim.
To
remedy this anomaly, we will need to change the present definition of
national territory and revert back to the language of the 1973
Constitution. This will give both the Philippines and the Sulu
Sultanate a stronger legal position to negotiate for what is due from
Malaysia.
A
tabular comparison of the different definitions of national territory
follows for reference:
|
1935 Constitution
|
1973 Constitution |
1987 Constitution |
|
Article
I, Section 1.
The Philippines comprises all the territory ceded to the United
States by the Treaty of Paris concluded between the United States
and Spain on the tenth day of December, eighteen hundred and
ninety-eight, the limits which are set forth in Article III of
said treaty, together with all the islands embraced in the treaty
concluded at Washington between the United States and Spain on the
seventh day of November, nineteen hundred, and the treaty
concluded between the United States and Great Britain on the
second day of January, nineteen hundred and thirty, and all
territory over which the present Government of the Philippine
Islands exercises jurisdiction.
(emphasis supplied) |
Article
I, Section 1.
The national territory comprises the
Philippine archipelago,
with all the islands and waters embraced therein,
and all the other territories belonging to the Philippines by
historic or legal title,
including the territorial sea, the air space, the subsoil, the
sea-bed, the insular shelves, and the submarine areas over which
the Philippines has sovereignty or jurisdiction. The waters
around, between, and connecting the islands of the archipelago,
irrespective of their breadth and dimensions, form part of the
internal waters of the Philippines.
(emphasis supplied) |
Article I. The national
territory comprises the Philippine
archipelago, with all the islands
and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around
between, the connecting the islands of the archipelago, regardless
of their breadth and dimensions, from part of the internal waters
of the Philippines. (emphasis supplied) |
Another
example,
the 1987 Constitution declares the principle that “sovereignty
resides in the people
and all government authority emanates
from them.” (emphasis supplied)xvi
Curiously however, the same Constitution thereafter declares that the
goal of the Armed Forces of the Philippines “is to secure the
sovereignty of the State and the integrity of the national
territory.” (emphasis supplied)xvii
So where does sovereignty reside now?
in the Filipino people comprised of 100 million natural persons? or
in the Republic of the Philippines which is a juridical person that
exists solely by legal fiction?
There is an obvious error here by the
framers that can only be rectified by using new corrective language.
If the term is used as a noun, then yes sovereignty resides in the
people. If however the term is used as an adjective, then that is
when we say that our country is a sovereign state.
Still another
example, the 1987 Constitution apparently sought to
carry over the past prohibition against foreign ownership of land.
Unfortunately for the framers, they crafted new language even when
they could have adopted the old language under the 1973 Constitution.
A comparison of the relevant
constitutional provisions follows:
|
1973 Constitution |
1987 Constitution |
|
Section 8. All lands of public domain,
waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other
natural resources of the Philippines belong to the State.
With the exception of agricultural, industrial or commercial,
residential, or resettlement lands of the public domain, natural
resources shall not be alienated... (emphasis supplied) |
Section 2. All lands of the
public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests
or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated... (emphasis
supplied)
|
|
Section 9. The disposition, exploration,
development, exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of
the Philippines, or to corporations or associations at least sixty
per centum of the capital which is owned by such citizens...
(emphasis supplied) |
Section
2... The exploration,
development, and utilization
of natural
resources shall be under the full control
and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino citizens,
or corporations or associations at least sixty per centum of whose
capital is owned by such citizens.
(emphasis supplied)
|
|
|
Section 3... Private corporations
or associations may not hold such alienable lands of the public
domain except by lease, for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof by purchase,
homestead, or grant.
|
|
Section 14. Save in cases of hereditary
succession, no private land shall be transferred or
conveyed except to individuals, corporations, or
associations qualified
to acquire or hold lands of the public domain. (emphasis
supplied) |
Section 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except
to individuals, corporations, or associations qualified to
acquire or hold lands of the
public domain.
(emphasis supplied) |
On the other hand, under the 1987 Constitution, it is unclear if private land may be transferred only to corporations owned 60% by Filipinos, because Section 3 does not say so, and Section 2 apparently refers to mining rather than to the acquisition of lands of the public domain.
There is another lapse
here by the framers that can only be corrected by using new
clarificatory language.
For the record, I no longer believe
that the various constitutional prohibitions against foreign
investments supposedly promote our national interest. Anyway, my
personal belief here is beside the point. This example is made to
show that using new language, despite the availability of existing
language, may actually result in ambiguity.
- DO consult lawyers and English scholars to review language.
Whether
we like it or not, the constitution is a legal instrument. In fact,
it is no ordinary legal instrument. It is the highest or supreme law
of the land. All other statutory laws, implementing rules and
regulations, administrative orders and local ordinances will be null
and void if these instruments contradict the constitution.
Accordingly,
since the constitution is a legal instrument, it is only prudent that
the people through their delegates seek the assistance of lawyers in
writing or reviewing the language intended to express what has been
agreed upon.
Apart
from the lawyers, it is also useful to seek the assistance of English
scholars, assuming that the constitution will be written in English.
They can help much in simplifying the otherwise lengthy and winding
language of lawyers. English teachers make good English scholars.
- DO record discussions for future reference.
If
the process of constitutional reform is by constitutional convention,
constituent assembly or constitutional commission, the deliberation
of delegates and hearing of resource persons are documented in due
course. If however the process is by people's initiative, there are
no fixed rules on documentation. It is here in a people's initiative
that extra effort is required to document the process.
If
apart from face-to-face interaction, the people's inputs are also
sought directly through social media, then the delegates or
proponents must also find innovative ways and means to document the
exchange views and information.
Remember
that the constitution is a legal instrument. In case of conflicting
interpretations, the courts will resolve the conflict by reviewing
the records of deliberations and hearings, among other ways and
means. If there are no such records, then it is possible that the
courts will reach a conclusion much different from that intended by
the framers.
Atty.
Dindo Donato
General
Counsel
Tanggulang
Demokrasya (TanDem), Inc.
23
January 2015
Elaboration of data by
United Nations, Department of Economic and Social Affairs,
Population Division. World
Population Prospects: The 2012 Revision. (Medium-fertility
variant).
viSee
US Defense Production Act of 1950, as amended by FINSA, Section 721
(50 U.S.C. App. 2170). Executive Order No. 11858 (as amended by
Executive Order No. 13456), re Foreign Investment in the United
States.
viihttp://www.nytimes.com/2006/10/31/us/politics/31vote.html
viii1987
Constitution, Article II Declaration of Principles and State
Policies, Section 10.
ix1987
Constitution, Article II Declaration of Principles and State
Policies, Section 11.
x1987
Constitution, Article II Declaration of Principles and State
Policies, Section 17.
xi1987
Constitution, Article II Declaration of Principles and State
Policies, Section 12.
xii1987
Constitution, Article XIII Social Justice and Human Rights.
xiii1987
Constitution, Article XIV Education.
xiv1987
Constitution, Article XV The Family.
xvPres.
Dec. No. 1596, Kalayaan Island Group, 11 June 1978.
xvi1987
Constitution, Article II Declaration of Principles and State
Policies, Section 1.
xviiId,
Section 3.
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